State v. Black River Phosphate Co.

Taylor, J. : On the 23d of October, 1890, the State of Florida tiled its bill of complaint in equity in the circuit court for Clay county against the Black River Phosphate Company, a corporation organized under the law's of Florida-. The allegations and prayers of said bill, omitting its formal parts, are in the words following : “(1.) The said company has for a year or more wrongfully, wilfully and unlawfully entered upon the bed of Black river, also known as 'Black Creek’ and has wrongfully, unlawfully and willfully dug, — 317 — mined, removed and appropriated therefrom, and is now unlawfully and willfully so doing, phosphate rock' and phosphatic deposit imbedded therein, in Clay county, Fla., and the said company is now and has been in possession of, and operating upon, the waters of said stream, within said county, pumps, dredges, lighters, scows and steamboats, and other appliances and facilities, for digging, mining, removing and appropriating phosphate rock and phosphatic deposit from the bed of said river. “(2.) The bed of said river from which said phosphate rock and phosphatic- deposit was so taken, and is so being taken, is about one mile below Middleburg, in said county. The said river is at this point-, and above and below it, navigable, and is of depth sufficient for boats drawing three feet and more of water, and is capable, in its ordinary volume of water, of transporting the products of the forests and fields along its bank to market; and the said stream, at, above, and below the places in the bed thereof from which said phosphate rock and phosphatic deposit have been and are being so taken, is in fact used in its ordinary condition as a highway of commerce, upon which the products of the country have been and are transported to market, and said stream, at above, and below said points, is of sufficient depth and capacity for valuable floatage. “ (3.) The said defendant company has so dug, — 318 — mined, removed and appropriated from the bed of said river a large quantity of said rock and deposit, to-wit, five thousand tons or more, and is now removing therefrom said rock and deposit at the rate of two hundred tons per day or more. These phosphate, rocks and pliosphatic deposits are valuable, and the said company has sold, and is selling the same at the price of ten dollars per ton or more, and lias appropriated and is appropriating the same exclusively to its private uses, and not in anywise for the benefit of commerce. “(4.) Your orator is not advised of the proportion of said rook and deposit which said defendant has been and is taking from the bed of said river underlying the waters embraced between the ordinary water-mark on either side of said river, as distinguished from that taken from the bed underlying the channel thereof, but your orator avers that said defendant has been and is trespassing upon, digging, mining, removing, and appropriating said rook and deposit wrongfully, indiscriminately, from the entire bed covered by the water of said river at its ordinary volume. “ (5.) Your orator has no information of the precise, quantity of said rock and deposit so dug, mined, removed, appropriated and sold, nor of the disposition made by the said defendant thereof, nor the price obtained therefor, as to all of which your orator avers — 319 — it is entitled to a discovery from said defendant; which discovery tlie said defendant can and should be required to make. “(6.) And your orator further shows that said defendant threatens, and will, unless restrained by the order of this honorable court, continue to trespass and enter upon the bed of said river, and so dig, mine, remove, and appropriate said rock and deposit in the bed of said river, and that your orator is remediless, except in and by the process of this honorable court, to restrain and prevent the said trespassing and entering and digging, mining, removing and appropriation by said defendant company of said rock and deposit. “And your orator prays that the said defendant, its officers, agents, employees, and servants, may be presently enjoined and restrained from trespassing and entering upon, the bed of said Black river, and from digging and mining therein, and from removing and from appropriating said phosphate rock and phosphat-ic deposit therein, and that at the hearing hereof the said defendant, its officers, agents, employees, and servants, be perpetually enjoined and restrained from trespassing and entering upon the bed of said Black river, and from digging and mining therein, and from removing therefrom, and from appropriating said rock and deposit therein; that it be referred to a master of this court to take and state an account, under the directions and instructions of this — 320 — court, of the quantity and quality of said rock and deposit so dug, mined and removed by the said defendant from the bed of said river, and the value thereof, and the price for which the same has been sold by the said defendant, and also an account of the quantity, quality and value of the said rock and deposit, so taken from the bed of said river, in the possession or under the control of said company; and that the said company be required, by the decree of this court,- to pay your orator the purchase price therefor, and to pay to your orator the value thereof so ascertained upon said accounting; and that your orator may have such further and other relief,” etc. To this bill the defendant below interposed a demurrer, assigning therein as grounds of demurrer the following: “(1.) The allegations of said bill are too uncertain, vague and indefinite. “(2.) The bill does not set out with sufficient certainty the claim of complainant in the subject-matter of the suit. “(3.) The bill does not sufficiently set out title of complainant in the subject-matter of suit. “(4.) The bill does not set out with sufficient certainty to what portion of the stream mentioned, or bed thereof, complainant’s claim extends. “(5.) Complainant does not allege that said stream — 321 — or portions thereof, from which phosphate is alleged to be taken, or on account of which relief or discovery is sought, is within tide-water. '•(/).) And for other grounds appearing on the face of bill.” Upon the.hearing of this demurrer the court below made the following order: “This cause came on to be heard upon the demurrer to the bill filed herein, and was argued by counsel. Upon consideration thereof, the court is of opinion that Chapter 791 of the Laws of Florida vested in the riparian proprietors the feo in all lands covered by water lying in front of any tract of land owned by any citizen of the United States situated upon any navigable stream as far as the edge of the channel. While the act is entitled ‘ An act for the benefit of commerce,’ and the Legislature deemed it for the interest of commerce that all submerged land and water privileges should be improved, they granted the full title, to the same to the riparian proprietors, to induce them to incur the. expense of making the improvements which the legislature deemed important for the benefit of commerce. This seems to be the view entertained by the Supreme Court of this State in so far as it has expressed any opinion on the subject. Entertaining this view of the law, the court, does not deem it necessary to express any opinion upon the question as to whether — 322 — or not tlie State owns the soil in the channel of rivers and streams in which the tide does not ebb and ilow, though in fact capable of navigation. The court is of the opinion that the demurrer is well taken. It is therefore ordered, adjudged and decreed that the demurrer to complaint’s bill herein be sustained. It is further ordered and decreed that tlie complainant have leave to amend its bill as it maybe advised.” Prom this order sustaining the demurrer the complainant appeals to this court. 'It will be observed from these pleadings that no where therein does it- appear that the defendant in the bill, or any one else, owns, possesses, controls or claims any land bordering upon the margin of the stream mentioned, so as to give the defendant the status or rights of a riparian proprietor, whatever such rights may be found to be upon thorough judicial inquiry. And it nowhere appears in the pleadings or record that the alleged operations and trespasses of the defendant have been carried on or committed under or by virtue of any claim of light as riparian proprietor or otherwise, yet the court below, in passing upon this demurrer, seems to have based his ruling thereon upon the theory or supposition that the defendant is a riparian proprietor upon the stream in question, and that under the provisions of Chapter 791, Laws Florida, (sections 1, 2, pp. 689, 690, McClel. Dig.,) the fee in the bed of the stream in question, as far as the edge of the chan — 323 — nel thereof, has been vested in the defendant as such supposed riparian proprietor, and that therefore the defendant, being such owner of the fee in this stream, had the right there to carry on the operations complained of. Exactly how the question of riparian proprietorship, and the extent of the rights attendant thereon, came before the court we cannot discover from the record, and hence must assume that it arose in the oral arguments of counsel at the hearing upon the demurrer. In the exhaustive presentation of the (‘.ase before this court by counsel for both the appellant and appellee, much time was devoted, and many authorities quoted, upon the questions of the relative rights of the State and riparian owners in the beds of navigable water-courses; it being contended for the appellant that the State, by virtue of its sovereignty, owned and controlled the entire beds of all navigable streams within her borders, and all valuable deposits therein, whether the waters thereof were fresh or salt, and whether the tides of the sea ebbed and flowed therein or not; while, on the other hand, it was contended for the appellee that the riparian proprietors on all non-tidal streams, whether navigable in fact or not, owned the beds thereof, and all deposits therein, ad medium filum aquae, under the common law of England on this subject claimed to be in force here, independently of our statute; and that, if this contention was untenable, they certainly owned the fee. in the beds of such streams to the edge of the channels thereof under the provisions of our statute. In view of the recent discovery of the existence in the — 324 — beds of our water-courses of pliospliatic deposits in such reputed quantities and of such high value as very materially to enhance the property and commercial interests of our state, we realize fully the importance of a prompt .judicial determination of the several highly important questions presented in the briefs and arguments of the counsel in this ease, so that the public rights of the State and the private rights of individuals aifected thereby may be positively and speedily known and established. But we are asked in this case to pass upon and to adjudicate the rights of a riparian proprietor whose existence, so far as the record shows, is purely imaginary, with nothing-whatever in the record that even suggests his presence in this case. Without violently trampling upon all rules and precedents, we cannot undertake, with the record before us, to consider questions, rights or issues that are not raised by or included in the proceedings brought here for review, particularly when the rights and questions thus supposititionsly presented dehors the record are of such grave importance to the state and to many of her private citizens. Without passing upon the correctness or incorrectness of the opinion of the court below construing the effect of the statute, (Chapter 791, supra,) in a proper case made calling for a construction thereof, wo think that a construction of the statute, under the pleadings presented at the hearing of the demurrer, was premature, there being nothing whatever in the issue raised by the bill and demurrer thereto that warranted a consideration of this statute. The case, as — 325 — presented by tlie pleadings, is, in short, that Black river is a navigable stream, and that the defendant is trespassing therein by the removal and appropriation from the bed thereof of phosphatic deposits that are valuable as a commercial commodity. By virtue of what, claim of right, if any, the alleged trespass is committed, does not appear. The bill is demurred to because it does not specifically allege any present title or ownership in the complainant to the premises trespassed upon, and because of the vagueness and indefiniteness of the allegations declaratory of the extent, of the complainant’s claims therein. It is nowhere alleged in the bill that the State of Florida is the owner of or entitled to the bed of the stream mentioned, or to any part thereof, or to any deposits removed or being removed therefrom; nor is there any specific allegation that any property or*J)ropriefary rights of the State have been inf ringed upon in the acts, proceedings or trespassings complained of. 'Neither is there any allegation that the usefulness and efficiency of said stream as a. public highway for commerce is deleteriously affected in any way by reason of the alleged acts complained of, nor is the remedy sought because of any alleged injury or threatened injury to the stream as a public commercial highway. If the bill had contained a. specific allegation that the State of Florida was, at the time of the filing thereof, the owner of or entitled to the bed of the river in controversy, at the point or points trespassed upon, and to all deposits therein, and that at such point or points it was in fact navigable or — 326 — susceptible of useful navigation to the public, and that its property rights therein were being trespassed upon as alleged, and threatened with frequently recurring trespassings, or that the efficiency of such stream as a public highway for commerce was being injured or destroyed by the acts complained of, then the demurrer should have been overruled, and the. defendant put to its answer to show, if it could, the right or claim of right, under which its operations there were being conducted. It was streauously insiste;! for the appellant' that no direct allegation of title or ownership in the ¡átate was necessary ; that the statements of the bill, to the effect that the stream was navigable in fact, and useful as a public highway for commerce, was of itself a sufficient averment of title in the State to the bed of such stream, and all valuable deposits therein ; that the ownership by the State w^ls the only inference and logical sequence that followed and flowed out of the allegation that the stream was in fact navigable. We cannot agree to this proposition that the statement- of one fact that constitutes only an essential element of the main fact necessary to be alleged, viz., the present title or ownership of the complainant, is a sufficient allegation of such leading fact. In Story Eq. P., £241, that learned author says : !‘!t may be affirmed as an elementaiy rule of the most extensive influence that the bill should state the right, title or claim of the plaintiff with accuracy or clearness ; and it should, in like manner, state the injury or grievance of which he complains, and the relief which he asks of the court. In — 327 — other words, there must be such certainty in the averment of the title upon which the hill is founded that the defendant may be distinctly informed of the nature of the case which he is called upon to meet.” And again, in section 27, the same author, in treating of the construction of hills, says: “The third party is the premises, or, as it is more usually styled, the stating part of the bill, which contains a narrative of the facts and circumstances of the plaintiffs case, and of the wrong or grievance of which he complains, and the names of the persons by whom done, and against whom he seeks redress. This part, constituting in truth the mil substance of the bill, upon which the court is called to act, requires great skill and judgment to frame it aright; and, if it 1ms not the proper legal certainty, the defect, unless removed, may become fatal in every subsequent stage of the cause.” Milf., Eq. PL, 05. In (Coop. Eq. Pl. the rule is stated thus : “It is, then, absolutely necessary that the bill should state the right of the complainant to what he seeks of the court, and the injury which he complains of; and both, by the standing-orders of the court, ought to be plainly, yet succinctly, alleged, and that with all necessary and convenient certainty as to the material circumstances of time, place, manner and other incidents.” Ryves vs. Ryves, 3 Ves., 343; Cresset vs. Milton, 1 Ves. Jr., 449; Cruger vs. Halliday, 11 Paige, 314; Gould Pl., 160; Sullivan vs. Moreno, 19 Fla., 200. The importance of a direct averment of a- present title or ownership in the State to the bed of the — 328 — stream in question becomes further apparent when it is considered that even though the State does, by virtue of her sovereignty, own and control the entire beds, and all deposits therein, of all streams within her borders that are in fact navigable by the public in the conduct of useful commerce thereon, whether the waters of such stream be salt or fresh, and whether the tides of the sea ebb and flow therein or not—a rule that we are of the opinion should obtain here upon the great weight of the American authorities, (Gould Waters, §§ 58, 79; Barney vs. Keokuk, 94 U. S., 324; Bullock vs. Wilson, 2 Port., (Ala.), 436, McManus vs. Carmichael, 3 Iowa, 1; Railroad Co. vs. Schurmeir, 7 Wall., 272,)—yet the proprietary rights of the state therein, prior to the time of the filing oí the bill, may have been granted away by otffe or the other of the two sovereignties, Spain and England, to both of whose dominions belonged at different periods the territory now known as the State of Florida, to say nothing of the possibility of the existence of a. grant anterior to the bill by the State herself, if it should be found that through her Legislature she had the power to make such grant. . It follows that the order of the court below sustaining the demurrer to the bill must be affirmed, not, however, upon the grounds or for the reasons stated in the ojpinion of the court below sustaining the demurrer, but because of the insufficiency, uncertainty and vagueness of the allegations of the bill. The order appealed from is affirmed.